Citation Nr: 0814550 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-07 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from June 1964 to June 1967, to include service in the Republic of Vietnam from March 1965 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in October 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, denying the veteran's application to reopen his claim for entitlement to service connection for post-traumatic stress disorder (PTSD). In connection with this appeal, the veteran was afforded a hearing before the Board, sitting at the RO, in January 2008, a transcript of which is of record. At this hearing, the veteran submitted additional documentary evidence without a waiver for its initial consideration by the RO. This matter is addressed in the remand below. In addition, the hearing record was left open for a period of 60 days, ending March 31, 2008, in order to submit any additional evidence, but none was received during the relevant time period. The Board herein addresses only the question of whether the veteran's claim may be reopened and the Board finds in favor of the veteran on that matter. The remaining question of whether service connection for PTSD is warranted, based on his reopened claim, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The claims folder of the veteran was lost or mislaid by the RO and a rebuilt claims folder has been established by the RO. 2. Service connection for PTSD was most recently denied by VA in a rating decision of November 2002, notice of which was furnished to the veteran in December 2002; an appeal of that determination was initiated in January 2003, and following the issuance of a statement of the case in August 2003, such appeal was not thereafter timely perfected. 3. Evidence received by VA since entry of the most recent final denial of the veteran's claim of entitlement to service connection for PTSD was not previously before agency decision makers, relates to an unestablished fact, is neither cumulative nor redundant of prior evidence, and raises a reasonable possibility of substantiating the veteran's claim. CONCLUSION OF LAW The November 2002 decision of the RO, denying service connection for PTSD, is final; new and material evidence has been received to reopen such claim. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.1103 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminarily, it is noted that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), became law in November 2000, and was thereafter codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). To implement the provisions of the VCAA, VA promulgated regulations now codified, in pertinent part, at 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2006). The VCAA has also been the subject of various holdings of Federal courts, including the specific notice requirements pertaining to claims to reopen, as set forth in Kent v. Nicholson, 20 Vet. App. 1 (2006). However, as the Board herein addresses only the question of the newness and materiality of the evidence submitted to reopen the claim in question and, to that extent alone, finds in favor of the veteran, the need to discuss VA's efforts to comply with the VCAA, its implementing regulations, and the interpretive jurisprudence, is at this juncture obviated. In general, decisions of the agency of original jurisdiction (the RO) that are not appealed in the prescribed time period are final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Generally, service connection may be established for disability resulting from personal injury suffered or disease contracted during active duty, or for aggravation of a preexisting injury suffered or disease contracted within the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). In this instance, the veteran's original claims folder has been lost or mislaid by the RO and the veteran obviously bears no responsibility for its unavailability. There are indications within the current claims folder, as rebuilt by the RO, that prior claims for service connection for PTSD may have been made and denied by the RO; however, the records on file confirm only a single prior denial effectuated by the RO in December 2002. At that time, it was conceded by the RO that there was a diagnosis of PTSD, but it was determined that there was no indication that the veteran engaged in combat or that there was otherwise supporting evidence of a stressor leading to the onset of PTSD. Notice of the denial was furnished to the veteran in December 2002 and, in January 2003, he initiated an appeal by his submission of a notice of disagreement. Following the issuance of a statement of the case in August 2003, he did not perfect his appeal by filing a VA Form 9 or substantive appeal and, as such, the November 2002 was rendered final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.1103. Given the finality of the most recent denial in November 2002, as set forth above, the question at this juncture is whether new and material evidence has been presented in connection with his June 2004 attempt to reopen the previously denied claim. Ordinarily, this would necessitate a review of the evidence submitted prior to and subsequent to the most recent, final denial. However, in this instance, notice is taken by the Board that the record includes the veteran's sworn testimony offered at the Board hearing in January 2008, the credibility of which must be presumed for the limited purpose of this inquiry per Justus v. Principi, 3 Vet. App. 510 (1992), as to the existence of two separate incidents occurring in Vietnam, either of which could potentially be a stressor for the post-service development of PTSD. One entails the March 1965 bombing of the American embassy in Saigon in close proximity of the veteran and his witnessing of the immediate aftermath of that bombing. The other involves his account of the killing of a Vietnamese child when he or she was run over by a vehicle in which the veteran was riding. Based on the loss of the claims folder, it is not shown that the veteran's account of his stressors has been set forth prior to November 2002 determination and there is no indication within the November 2002 determination or the evidence considered in connection therewith included the claimed stressors set forth by the veteran at the January 2008 hearing before the Board. On the basis of the foregoing, it is concluded that the noted evidence regarding stressors was not previously before agency decision makers, it relates to an unestablished fact, it is neither cumulative nor redundant of prior evidence particularly in light of the loss of the original claims folder, and raises a reasonable possibility of substantiating the veteran's claim for PTSD. As such, it is determined that new and material evidence has been presented to reopen previously denied claim for service connection for PTSD. To that extent, alone, the benefit sought on appeal is granted, and the reopened claim is addressed in the REMAND portion of this document that follows. ORDER New and material evidence has been received to reopen a previously denied claim of entitlement to service connection for PTSD; the benefit sought on appeal is granted to this extent only. REMAND The veteran contends, in essence, that he has PTSD due to combat duty or in-service stressors. Establishment for service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV). 38 C.F.R. § 3.304(f). The United States Court of Appeals for Veterans Claims (Court) has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke...in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128, 140-41 (1997). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Where it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of such service." Id. If, however, it is determined that the veteran did not engage in combat, then his lay testimony, by itself, is insufficient to establish the alleged stressor(s). Instead the record must contain service records or other independent credible evidence to corroborate the veteran's account of inservice stressors. Dizolgio v. Brown, 9 Vet. App. 163, 166 (1996). If the claimed stressor is not combat-related, the veteran's lay testimony regarding in-service stressors is insufficient to establish the occurrence of the stressor and must be corroborated by credible supporting evidence. Cohen, supra. Where a current diagnosis of PTSD exists, the sufficiency of the claimed in-service stressor is presumed; the Board can reject favorable medical evidence as to stressor sufficiency only on the basis of independent medical evidence, accompanied by an adequate statement of reasons or bases, and only after first seeking clarification of an incomplete examination report (whether or not such clarification is actually provided by the original examiner) pursuant to applicable VA regulatory provisions. Id. at 142-144. The veteran has alleged two in-service stressors during the course of the appeal relating to his June 2004 claim to reopen. Previous allegations relating to his stressors have entailed what the veteran described as "combat situations." The RO did not formally determine whether the veteran engaged in combat with the enemy, nor did it make any attempt at stressor verification, to include contact with the United States Armed Services Center for Unit Records Research, since renamed the U.S. Army and Joint Services Records Research Center (USAJSRRC). The veteran seeks assistance from VA in facilitating the conduct of stressor verification efforts. With respect to the alleged witnessing of the death of a Vietnamese child, the Board notes that anecdotal experiences of this type simply cannot be verified independently. See 38 C.F.R. § 3.159 (c)(2)(i) (2007); see also Cohen v. Brown, 10 Vet. App. 128, 134 (1997) ("Anecdotal incidents, although they may be true, are not researchable. In order to be researched, incidents must be reported and documented."). However, his allegation of being in the vicinity of the bombing of the American Embassy is potentially verifiable. It is pertinent to note that the United States Court of Appeals for Veterans Claims held in Pentecost v. Principi, 16 Vet. App. 124 (2002), that corroboration of every detail of a stressor under such circumstances, such as the claimant's own personal involvement, is not necessary. See also Suozzi v. Brown, 10 Vet. App. 307 (1997). It is not clear from the record where the veteran's location was at the time of the bombing of the American Embassy but as it is certainly possible that date of the incident in question and his location at that time can be verified, additional development on this matter is warranted. The Board also finds that, if combat duty or a claimed in- service stressor is verified, there is a duty to provide the veteran with a psychiatric examination to determine if he meets the diagnostic criteria for PTSD and, if so, whether it is linked to service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.159(c)(4), 3.304(f), 4.125; Zarycki, supra; Dizolgio, supra; Cohen, supra. As noted in the introduction to the above decision, at a Board hearing in January 2008, the veteran submitted additional documentary evidence and he has not waived his right to preliminary review of the evidence by the RO. See 38 C.F.R. § 20.1304(c) (2007). As such, the RO must consider the additional evidence received, in the first instance, in adjudicating the veteran's claim. Finally, there is indication that there are relevant private and VA medical and psychiatric records that are not in the claims file. This additional evidence must be secured and associated with the record. 38 C.F.R. § 3.159(c)(1)(2) (2007). Accordingly, this case is REMANDED for the following actions: 1. The veteran must be contacted in writing and, consistent with the provisions of 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007), he must be notified of the information and evidence still needed to substantiate his reopened claim of entitlement to service connection for PTSD. Such notice should also provide an explanation as to the information or evidence needed to establish ratings and effective dates, as outlined in the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Depending upon the veteran-appellant's response, any and all assistance due him must then be provided by VA. 2. By separate correspondence, the veteran should be asked to provide identifying data, including names and addresses and the approximate dates of examination or treatment, of all medical providers or facilities from whom he sought medical and/or psychiatric assistance for all psychiatric disorders from the time of his discharge from service until the present. Notice is taken that at his recent hearing before the Board he indicated that treatment had been received at Charity Hospital, Mandeville Hospital, and Coliseum House, but there are no records of that treatment in the veteran's rebuilt claims folder. Upon receipt of the necessary identifying data, the AMC should contact each specified facility for the purpose of obtaining all pertinent examination and treatment records. Once obtained, such records should be made a part of the claims folder. 3. All VA medical examination and psychiatric treatment reports, not already of record, which pertain to the veteran's claimed PTSD or other psychiatric disorders, including those compiled since his discharge from service in June 1967, should be obtained for inclusion in his rebuilt claims folder. 4. The veteran must be contacted in writing by separate letter and afforded one last opportunity to provide any additional information regarding the who, what, when, where, and how as to (a) each of his claimed inservice engagements in combat with the enemy and (b) those claimed inservice stressors leading to the onset of his PTSD. An appropriate period of time should then be permitted for a response. 5. The RO/AMC should request morning reports from the National Personnel Records Center (NPRC) with respect to any and all periods in which the veteran has previously indicated he was engaged in combat with the enemy or was otherwise subject to an in-service stressor reportedly leading to the onset of his PTSD. Once obtained, such morning reports must be associated with the veteran's claims folder. If additional information from the veteran is found by the NPRC to be needed to obtain pertinent morning reports, such information must be sought by the AMC/RO from the veteran and if he does not then respond, no further input from the NPRC need be sought. 6. Thereafter, and regardless of whether or not the veteran responds to the request set forth in preceding paragraph Number 4, the AMC/RO must thereafter enter a formal determination, following any development deemed necessary, as to whether the veteran engaged in combat with the enemy during his period of active duty. Notice to the veteran of the determination entered and affording him a reasonable period to respond should follow. 7. Thereafter, the AMC/RO must prepare a written summary of all the stressors claimed by the veteran to have led to the onset of his PTSD using any and all information regarding the veteran's claimed stressor(s), to include witnessing the bombing of the American Embassy in Vietnam. This summary, along with a copy of the veteran's Department of Defense Form 214, his service personnel records, and all associated documents must then be sent to the USAJSRRC with a request that an attempt be made to corroborate the alleged stressor(s). If additional information from the veteran is found by the USAJSRRC to be needed to conduct meaningful research, such information must be sought by the AMC/RO from the veteran. If the veteran does not then respond, no further input from the USAJSRRC need be sought. 8. Following receipt of any additional report from the USAJSRRC, as well as the completion of any additional development requested above or suggested by such organization, there must be prepared by the RO/AMC a written report detailing the nature of any in-service stressful event(s), verified by the USAJSRRC or through other documents. If no stressor is verified, that should be so stated in such report. 9. If and only if the RO verifies combat duty or one of the claimed in-service stressors, the veteran must be afforded a VA psychiatric examination to determine if he meets the diagnostic criteria for PTSD and, if so, whether such is linked to a verified in-service stressor. The RO/AMC should inform the psychiatrist of the verified in-service stressor(s) and forward the claims folder to that psychiatrist for his/her review. The psychiatric evaluation should then undertake a review of the veteran's history and current complaints, as well as a comprehensive mental status evaluation and any tests deemed as necessary. The examiner should then offer an opinion addressing the following question: a) Does the veteran meet the diagnostic criteria for PTSD, as defined by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)? b) If the answer to (a) is in the affirmative, is it at least as likely as not (50 percent or greater degree of probability) that the veteran's PTSD is causally linked to any verified in- service stressor(s)? The VA psychiatrist is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended onset date or causal relationship; less likely weighs against the claim. The psychiatrist is requested to answer the question posed with use of the as likely, more likely or less likely language. The psychiatrist is also asked to provide a rationale used in formulating his or her opinion in the written report. 10. Lastly, the AMC/RO should prepare a rating decision and adjudicate the veteran's reopened claim for service connection for PTSD on a de novo basis, considering all of the pertinent evidence on file, including that submitted at the Board hearing in January 2008, and all governing legal authority, inclusive of 38 C.F.R. 3.304(f) (2007). If the benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case, which should contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue on appeal. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The veteran need take no action until otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the AMC/RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to obtain additional development. No inference should be drawn regarding the final disposition of the claim in question as a result of this action. ______________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs